Recent changes in India’s maternity benefits policy such as increased duration of paid maternity leave, the option of working from home after the leave period expires, etc. have been touted as revolutionary. In this piece, Sneha Ahmed explains why these changes reinforce the idea that only the mother is the primary caregiver, encourages employer biases against women, fails to be inclusive, and allows the government to shrug its economic responsibility.

“Are we women not citizens?” is the title of the paper written by Ayesha Kidwai in which she re-examines the involvement of Mridula Sarabhai and her social workers during the 1950s in the recovery of abducted women. The fact that I can ask this question today makes me wonder how far we have come since then. I was not amused to learn that the participation of women in India's labor force had fallen from 42.7 percent in 2004–05 to 23.3 percent in 2017–18 (the reduction was seen mostly in women between the ages of 15-24 years).

In the recent monsoon session, the Indian parliament passed the Social Security Code, 2020, which consolidates nine labor laws, including the Maternity Benefit Act of 1961. In this piece, I critically examine the changes to India’s maternity benefits regime.

It is everyday violence in its own right that women get restricted access to education, which in turn, mobilizes the working sector against women. But the fact remains that women’s bodies and ambitions are constantly instrumentalized in fashioning notions of the male self and the male nation, even when those very bodies undergo the physically and emotionally significant event of childbirth or adoption. That these structures of power expect women to turn into monuments of endurance remains particularly harrowing. The evolutionary journey of maternity laws in India stands testament to this.

The linchpin of most maternity laws is, to quote from Robin J. Ely and Irene Padavic’s article in the Harvard Business Review, “a belief in women’s natural fitness for family, and in men's for work.”

The recent changes to maternity benefits law in India hailed as revolutionary are, in fact, mostly symbolic. The key changes were:

(i) increased paid maternity leave from 12 weeks to 26 weeks for women employees unless they have two or more surviving children; (ii) recognition of the rights of an adopting mother and of a commissioning mother (using a surrogate to bear a child) for the first time, who may claim paid maternity leave for 12 weeks; (iii) a “work from home” option that may be of benefit after the maternity leave expires; and (iv) effective as of 1 July 2017, mandatory crèche (daycare) facilities for every establishment employing 50 or more employees, including the right of mothers to visit the crèche four times per day.

The amendments may have been well-intentioned but remain rooted in patriarchy. Just as the fruit doesn’t fall far from the tree, no legal policy can entirely detach itself from its cultural setting. India’s cultural landscape of deep-rooted sex discrimination and the stigmatization of reproductive health is a fertile ground for breeding laws that perpetuate sex stereotypes. By increasing the leave period and stating that only the mother is eligible for the crèche facility, the statute reinforces the social norm that women are the primary caregivers.

The lawmakers’ deafening silence about who would have to bear the costs of these benefits suggests a lack of strategic thought. However, in response to a right to information (RTI) query, the government has confirmed that employers need to bear the full cost of compliance and childcare support to its employees. We already see an adverse sex ratio in most organizations; this policy would only skew the curve further.

A study by TeamLease concludes that these so-called maternity benefits for women are likely to discourage organizations from hiring women. Even if we put aside the statistics for a moment, it wouldn’t be too difficult to contextualize the power dynamics that govern our lives and the workforce, which are heavily tilted towards men. Any woman availing of these maternity “benefits” would only lower her productivity compared to her male counterparts in the eyes of an employer. These benefits assume that childcare is the woman’s job by default – the man only steps in when “needed”. Thus, the government has failed to (a) change the employer’s mindset concerning sex stereotypes; and (b) offset the employer’s perceived economic burden of hiring women who may avail of these “benefits”. Simply put, by insisting that only women are caregivers and failing to offset the employer’s perceived economic loss when a woman avails maternity benefits, employers are incentivized to hire men over women.

On another note, the new law demonstrates a clear lack of inclusivity. Today, in India, gravitation towards avoiding societally ascribed gender norms has become more apparent with the decriminalization of homosexuality, attempts to do away with toxic masculinity, and several other little everyday protests. This environment’s novelty could have been used to pursue a law that does not discard male single parents or anyone who identifies as queer. As communities that are constantly under the radar and persecuted for their identities, the new law is likely to have far-reaching implications for queer communities. An inclusive parental benefits policy could have set a precedent for the law to act as a tool to fight invisibility instead of merely feigning sympathy.

India might pride itself on having one of the most “generous” maternity leaves, and a cursory look at the maternity policies of other Asian countries may reassure our sense of moral security. However, we must learn from the successes and failures of initiatives taken in these countries. Even though most Asian countries have yet to create an environment conducive to women’s professional growth, countries like Singapore and Japan may be one step ahead. As it stands, Japan has one of the highest rates of working women in the developed world. A part of this feat could be owed to the fact that in 2016, Japan’s finance ministry raised the amount a dependent spouse can earn from ¥1.03m to ¥1.5m ($12,743). “The change is meant to spur more working hours from people who deliberately limit their annual incomes to ¥1.03m so their main-earner spouse can claim them as a dependent and receive a generous tax deduction,” reported the Financial Times. While the policy’s efficiency is still up for debate, Japan’s tax laws hint that additional incentives might be one way for more women to join the workforce. It has been long established how vital a determinant the income tax structure is for women’s labor force participation in a country.

Interestingly enough, up until 2011-12, men and women had different income tax slabs in India, which meant “women used to get an additional tax benefit in the form of higher basic exemption limit/ tax rebate as compared to male taxpayers.” As important as it is for women to break through the glass ceilings in their respective workplaces, a significant part of the task of enabling women to identify themselves as economic agents lie in the state's hands. Taxes, being one of the most critical tools that strengthen a nation, could give India a head-start in that regard.

Singapore grants women up to 16 weeks of government-paid maternity leave alongside a number of government subsidies. Steps like these which show clear planning and direct government support leads to strong support networks within the workforce and shifts in perception and outlook of both the employees and employers.

A principle like Occam’s razor, which could be paraphrased as “the simplest explanation is most likely the right one” may have been successful in defending divine miracles. But to eliminate the deep sociological causes for structural gender discrimination in India, policy-makers will have to dig deeper than merely extending the period of maternity leave and the number of people it applies to.

Some suggestions would be:

  • Government to share the onus of financing – Like in Singapore, the administration could have more of a role to play in financing and bear a part of the cost. Without the government’s involvement in implementing such laws and ensuring that the employer's loss is offset, employers are bound to prioritize hiring men over women.
  • Critical empathy - In a country like India, with its history of systemic oppression of minorities, what needs to find a place in legislative actions like these is space for these subjugated communities and formulate approaches accordingly.
  • Shared parental leave – A good place to begin would be to entitle couples to shared leave, which would deconstruct the idea of one parent being the primary caregiver and split the burden of costs between two employers. Reading about Maneka Gandhi’s cynical remark on how paternity leave “will only be just a holiday” for men made me believe I was reading some scripture from the past. Under Central Civil Services (Leave) Rule 551 (A), there are provisions for fathers (both biological and adoptive) to avail paternity leave up to fifteen days. In 2017, Rajeev Satav, an MP from Maharashtra, in an attempt to stand up for the benefits of fathers of newborn babies, proposed the Paternity Benefit Bill. The Bill, of course, has not yet been passed. In the bleak aftermath of this enforcement of gender roles through legislative action in which statistics will be quoted, and more symbolic moves will be made, the policy-makers’ incompetence, which amplifies far more disturbing notions, will be difficult to overlook.

Presently, the unfavorable effects of India’s maternity benefits policy far exceed the advantages as women will probably wind up in a weak negotiating position. In addition to being blatantly against the vision of equality in labor force participation, the policy is (a) irresponsible about access to marginalized communities and (b) stands as a clever way of tossing the state out of the equation in terms of implementation. By putting itself out of the equation, the government absolves itself from both addressing these issues and finding a middle ground, leaving us wondering if it “takes a village to raise a child,” why is it that only mothers bear the cost?

Edited by: Vasudev Devadasan